Sobering Action: Immediate Ban For Irresponsible Drinking Ad

The ASA has taken the "unusual step" of immediately removing an ad by a company called Koosday for a club night featuring a man slumped against a car with the text "I DON’T WANT TO DIE SOBER". The ad appeared on car bonnets and prompted a complaint that it irresponsibly linked alcohol with driving.

The ASA was concerned (perhaps unsurprisingly) that "the ad was seriously prejudicial to the general public on the grounds that it was irresponsible and harmful in linking alcohol consumption with driving – particularly because it had been placed on cars belonging to university students and was likely to be seen by other students when parked on campus – and encouraged excessive drinking". In exceptional circumstances, the ASA is able to take interim action and have ads immediately amended or withdrawn pending investigation (as it did earlier this year with the Paddy Power Pistorius advert that we blogged about back in March 2014).

The ASA discussed the importance of responsible alcohol advertising in one of its recent "hot topics" and reiterated the robust approach it takes in ensuring the rules are complied with. It reminded advertisers that the UK advertising rules for alcohol are extremely strict and are based on evidence that points to a link between alcohol advertising and people’s awareness and attitudes to drinking. In particular, alcohol ads must not be directed at people under 18 or contain anything that is likely to appeal to them or link alcohol to irresponsible behaviour, social success or sexual attractiveness. The TV and radio advertising rules also impose tough controls on the placement and content of alcohol advertising.

The ASA announced that it has launched a fast track investigation in connection with the ad and will publish its findings shortly.

Native Advertising Once Again In The Spotlight

As we have previously reported here, native advertising is intended to form a part of users’ online experiences, aiming to engage and compel with minimal disruption. Often the content of native advertising is high quality, reaching out to an audience’s wants and needs, sometimes going viral. Clearly marketers are working within divergent boundaries; creating appealing and intelligent content whilst simultaneously being careful not to camouflage the content so well that consumers are misled about its origin and purpose.

Last week the ASA (the Advertising Standards Authority) upheld complaints about a banner ad on newspaper The Independent’s website, ran by content discovery company Outbrain. Outbrain generates paid for links to recommended third party content, or a publisher’s other content, based on user patterns. The recommendations can sit as a panel ad at the end of an article on a publisher’s page. The complaints were over whether or not the advertising, which showed images and text under the title "You may also like these", was identifiable as marketing.

Outbrain confirmed that they did not own the websites where the banners were placed and the website owners had control over the ‘look and feel’ of content. They said that the industry standard of including wording such as "you may also like these" or "recommended by" appearing next to their logo would identify the ads to most Internet users as promoted content.

The ASA disagreed with this approach and said that some consumers would not necessarily realise that the different recommendations formed part of the same ‘panel’ of ads, they might not notice the ‘recommended by’ text and they might not realise that the logo linked to further information. The ASA therefore unsurprisingly held that the banners in their current form were not sufficiently obvious to ensure that consumers were aware they were viewing marketing communications, and ruled that the ads in their current form were misleading.

Given the above, it’s easy to see how it’s tricky to get native advertising right. The industry press frequently reports of advertisers being caught out in our new digital era by not making it clear to consumers where content is paid for. The Committee of Advertising (CAP) even published Guidance in conjunction with the ASA on sponsored communications to clarify some of the grey area, back in 2012. The ASA’s message is again that all promotional activity should clearly be identified as such.

ASA Withdraws Pistorius Ad: Joke's On You, Paddy Power

 Last week, the ASA ordered Paddy Power to remove a newspaper ad offering "money back" on bets if Oscar Pistorius is found not guilty of murder. The ad showed a photograph of the South African Paralympian superimposed on a statue of an Oscar award, with the words: "It’s Oscar Time. Money back if he walks. We will refund all losing bets on the Oscar Pistorius trial if he is found not guilty". The ASA received 5,200 complaints about the ad, making it the most controversial campaign of all time. It surpassed that of the Kentucky Fried Chicken ad which was previously the most complained about ad with 1,671 complaints and featured call centre workers singing with their mouths full of KFC products.

As a result of the "unprecedented number of complaints", the ASA has taken the "unusual step" of withdrawing the ad with "immediate effect" pending an investigation. It said it was investing whether the ad is "offensive for trivialising the issues surrounding a murder trial, the death of a woman and disability". The ASA is also considering whether the ad "brings the good reputation of advertising generally into disrepute". The campaign was launched to coincide with the Oscar ceremony in Los Angeles and the first day of Pistorius’ trial in South Africa. Prosecutors allege that Pistorius, 27, shot his model and reality TV star girlfriend through the bathroom door at his home on Valentine’s day in 2013. Pistorius insists he mistook her for an intruder.

The influx of complaints has, to some degree, been fuelled by the online petition on Change.org which has attracted over 126,000 signatures. Protesters claim that the "death of a woman should not be used as a publicity stunt" and call it a "disgusting low". Paddy Power’s chief executive, Patrick Kennedy, told one newspaper that the company was justified in running the bet because it was the "most talked about and reported story of the year. This is about the trial not about the murder". The ASA has said that the ad will remain out of circulation in all UK media until the investigation, which is being "fast-tracked", is concluded.

Non! - ASA Bans Kronenbourg Ad For Over-Emphasising French Connection

Kronenbourg’s advertising campaign starring French footballing icon Eric Cantona has been banned. The ASA investigated two separate ads for the same campaign; a TV ad and a print ad. The TV ad explained how French men were lauded like "British footballers" for growing the French sourced Strisselpalt Hop, a key ingredient of Kronenbourg. The print ad also expressed that "if you find a better tasting French beer, we’ll eat our berets".

Two complaints suggested the ads were misleading as they imply that Kronenbourg is brewed in France, rather than the UK. Heineken, the owner of Kronenbourg, dismissed such claims by explaining that the brand ownership, history, heritage and origins made Kronenbourg an "inherently French beer" and the Strisselpalt Hop is solely sourced from Alsace, France. In addition, Kronenbourg ads had focused on its French origins for many years.

Breaching BCAP Code rules 3.1, 3.2 (misleading advertising), 3.9 (substantiation) and 3.10 (qualification), the ASA held that the TV ad’s emphasis on a connection to France was sufficient for consumers to believe the entire manufacturing and brewing process took place in France. The ASA noted that, whilst the Strisselpalt Hop is sourced from France, it does not constitute a significant proportion of the Kronenbourg recipe. The ASA also held that the print ad breached CAP Code rules 3.1, 3.3 (misleading advertising), and 3.9 (qualification), declaring that the "brewed in the UK" small print, "contradicted, rather than clarified the main message of the ad".

Heineken has submitted an appeal. Should the ASA ruling be upheld, it may have further consequences for similar foreign brands which produce their goods (or part of them) in the UK.

Botox Ads Frozen By The ASA

Following a complaint from the Independent Healthcare Advisory Service, the ASA has banned botox ads by Dermaskin and HB Health of Knightsbridge. The websites of each advertiser promoted the use of botox, stating it has the ability to make users appear younger and it leads to "astonishing results". The ASA has ruled that such language is inappropriate and explained that such advertising campaigns must "stick to the facts". Ads must be presented in a "factual and balanced way" and correctly reflect the content of the applicable "summary of product characteristics".

The only cosmetic use of botox in the UK which is permitted without prescription is in relation to its application to vertical lines on the forehead between frown lines. Beyond such use, botox is only available from doctors by prescription. Any advertising which promotionally markets botox as a beauty treatment will breach the CAP and BCAP Codes. The ASA intends to use this ruling as a precedent to all online advertisers of botox products. With a product that could be harmful to health, the ASA will be on the lookout for any ads which link botox to beauty.

CAP has published advice and guidance on anti-ageing and botox claims viewable here.

ASA Administers First Aid Ad Ban

In a rare move, the ASA overturned at the end of last year its previous decision to reject a complaint about the accuracy of data used in a St John Ambulance ad, and has banned the ad in its current form, after an independent review. The ad (watch it here) was the 10th most complained about of 2012 after the ASA received 144 complaints in that year. In July 2013, the ASA rejected a complaint by the fact-checking organisation Full Fact about the accuracy of the data cited in the ad, which claimed that "First aid could help prevent up to 140,000 deaths every year. The same number of people that die from cancer". Full Fact appealed the decision and the ASA has now overturned its original ruling after further investigation and deemed the claim to be misleading. Read its reasons for doing so here.

St John Ambulance is considering whether it can take legal action over the ruling after Steve Conway, Director of Brand Marketing, Communications and Fundraising at the charity responded, "the ad was approved by Clearcast, who we worked with from the outset to ensure we were transparent and that it complied with the Broadcast Committee of Advertising Practice Code… Despite the ASA ruling that we can’t use the claim in advertising, we still stand by our analysis that first aid could help prevent up to 140,000 deaths every year." Nevertheless, with the ASA putting more checks and balances in place when assessing complaints about charity and public service adverts, we would advise advertisers to be ever more vigilant in ensuring all claims made in their advertising are capable of substantiation with concrete evidence, particularly where, in the case of such charity ads, there is such an important message to be conveyed.

 

Hard-Hitting RSPCA Ad Exterminated by ASA

The ASA has this week upheld complaints against an RSPCA ad that suggested badgers in cull areas would be "exterminated". The poster showed a picture of a badger, a bullet and a vaccination needle, asking: "Vaccinate or exterminate?" The ad’s text stated "The UK Government wants to shoot England’s badgers. We want to vaccinate them – and save their lives". After receiving 119 complaints, including from Conservative MP, Simon Hart, the Shadow Minister for Rural Affairs in Wales, Antoinette Sanbach, and the Farmers’ Union of Wales, the ASA deemed the word ‘exterminate’ misleading as "consumers were likely to interpret the claim…to mean that all badgers would be eradicated in cull areas". In truth, a target has been set for marksmen to kill at least 70% of badgers in each specific cull zone, therefore leaving the exact figure uncertain. The ASA has stated that RSPCA should not use the ad again in its current form.

Fuel For Thought - CAP To Clean Up E-Car Ads

Following an upsurge in the number of electric and hybrid vehicles, an increasing competitiveness in the market, and a corresponding increase in the number of complaints regarding the marketing of such vehicles, CAP has released a message of advice for advertisers of electric and hybrid vehicles.

The ASA reported that complaints received related to "the claimed efficiency of the car, the equivalent to the number of miles per gallon it can achieve, and to the emissions released by the car". CAP's note states that as ads for electric vehicles are less likely to be easily understood by a consumer than ads for a more conventional vehicle, information should be clear and unambiguous, especially when claiming such features as ‘zero emissions’.

One such complaint set out in the report concerned an advert’s fuel consumption and emission figures. The ASA noted that the claimed fuel consumption figures in the ad did not take into account the fact that the battery had been fully charged from mains electricity before the fuel consumption testing began; a point that, the ASA argued, could mislead consumers as to the fuel efficiency that they could expect from the car. To the ASA’s satisfaction, the advertiser amended the ad, stating that the fuel consumption figures were not necessarily what a user would achieve and that they had been achieved through a combination of battery power and petrol fuel.

Heeding the advice of CAP, advertisers of electric and hybrid vehicles should take care when expressing figures in their ads, and should not assume a level of consumer understanding above what is reasonable for a relatively new and rather technical field. Please contact a member of the ReACTS Team if you wish to discuss CAP's message or your electric vehicle campaigns.

OBA Report Exposes Bad Behaviour

Earlier this month the ASA published its half-year report into compliance with the new Online Behavioural Advertising (OBA) rules. By way of background, the rules apply to advertisers that collect and use web viewing behavioural data in order to deliver online ads that are more likely to be of interest to a consumer. The rules require advertisers to provide a notification to consumers that OBA is being used, as well as an opt-out mechanism on both their own websites and on the OBA ad itself (CAP Code Appendix 3, Rule 31.1.1) in order to provide consumers with increased transparency and control over the collection and use of their web viewing data.

The ASA found that the complaint numbers from users was very low – with only 77 complaints between February and June 2013. The report states that the "overwhelming majority of complaints focused on problems that consumers had experienced in trying to opt-out of receiving OBA" and that of 380 advertisers engaged in OBA activity, 77% of those were at risk of breaching Rule 31.1.1 as "the notification of OBA activity was either not present or was not clear enough". In the majority of cases, the notification appeared on the homepage in small print or within a Privacy Policy. The ASA has not taken any formal enforcement action on this issue as yet, nevertheless, it has started contacting advertisers who appear to be in breach, in order to draw their attention to the new rules.

The report’s findings should be heeded by advertisers and, in particular, those which engage in OBA should ensure that both their own websites and ads comply with the OBA rules. Contact a member of the ReACTS team if you are concerned about your compliance with this issue.

ASA stumbles upon age-old problem

The ASA has released a survey which was commissioned to establish what advertisements were being accessed and seen by young people online. The 27-page survey focuses much of its attention on the engagement by young people of social media platforms and, perhaps unsurprisingly, establishes that a significant proportion of young people register with social media platforms using false ages.The survey goes on to demonstrate that as a result of registration using false ages, young people were exposed to advertisements targeted at adults, including those for age-restricted products for gambling, alcohol, slimming aids and overtly sexual dating services.

As a result of the survey, the ASA has indicated that it intends to raise the age-verification issues with the various social media companies.

ASA Ruling Concerning Payday Loans Is Of High Interest

 The ASA has banned yet another advertisement for payday loans. Financial (UK) Ltd (trading as ‘FirstPayDayLoanUk’) was held by the ASA to have breached a number rules contained in the CAP Code by sending text messages to consumers, such as:

"Hi Mate hows u? I'm still out in town, just got £850 in my account from these guys www.firstpaydayloanuk.co.uk".  

Social Responsibility

A number of complaints centred on the social responsibility implications of the advertisement. The ASA found that the phrase "I’m still out in town" would imply to a recipient consumer that a loan had been spent on a social day out.

The social responsibility aspects of payday loans has the caught both the ASA and the OFT’s eye recently and so it is not surprising that the ASA considered that it was inappropriate and irresponsible to promote a social life funded by short-term loans.

Misleading Advertising 

The Code requires marketing communications to be clearly identified as such (Rule 2.1), and not to be misleading (Rule 3.1). Furthermore, the Consumer Protection from Unfair Trading Regulations 2008 also prohibits a business from falsely holding itself out as a consumer. 

The ASA held that, in breach of the Code, the advertisements were not clearly marked as marketing communications and indeed, in light of the informal tone, would likely be considered by consumers as personal messages. Interestingly the ASA’s decision was also influenced by the fact that FirstPayDayLoanUk had used a standard UK phone number to send the texts.

Comment 

The ruling compliments various other decisions and commentary made recently by both the ASA and the OFT concerning the promotion and marketing of payday loans. It appears that the social responsibility aspects are of particular concern and advertisers should take care to avoid common pitfalls when advertising in this highly regulated and contentious area.

ASA Supports The Mother Of All Christmas Ads

During the 2012 Christmas season, ASDA and Morrisons ran ads depicting mothers running errands, bustling around kitchens, preparing food, wrapping presents and attending Christmas plays. Complaints were made to the ASA on the basis that they were offensive and sexist because they reinforced outdated stereotypes of men and women in the home.

Morrisons responded to these claims by stating that its ad was a socially aware and thought provoking glimpse of the reality that faces many working mothers who bear the brunt of responsibility for Christmas preparations, and a "subtle and sensitive critique" which did not encourage discriminatory behaviour or treatment. ASDA acknowledges that its ad did not reflect universal experience, but pointed to its extensive customer research showing almost 2,000 mothers agreed with this depiction. ASDA’s ad also received complaints on the grounds that it could cause offence to single fathers, men who are in a primary domestic role and children who have lost their mothers, which appeared to be evidenced by the VO "behind every Christmas, there’s mum, and behind every mum, there’s ASDA".

The ASA considered the ads under Rules 4.1 (ads must contain nothing that could cause physical, mental, moral or social harm to persons under the age of 18), 4.2 (ads must not cause serious and widespread offence against generally accepted, moral and cultural standards), and 4.8 (ads must not condone or encourage harmful discriminatory behaviour or treatment), but the complaints were not upheld.

Perhaps most interesting about these adjudications is the ASA’s finding that the ASDA ad, which received over 600 complaints from members of the public, was not deemed to have caused "serious and widespread offence". The ASA accepted that such depictions were not indicative of everybody’s Christmas experience but they did represent the experiences of certain of the supermarkets’ customer demographics.

Will It Be All White On The Night? - Toothpaste Companies Put To Proof Over Their Whitening Claims

Two toothpaste manufacturers have recently felt the bite of the ASA. Purity Laboratories Ltd claimed in a magazine advertisement that its products produced "whiter teeth in 1 minute" and attempted to substantiate this claim on its website by stating that " a study conducted at Bristol University Dental School proved that Beverly Hills Formula toothpaste can remove over 90% of staining in just 1 minute." When the ASA put Purity Laboratories Ltd to proof on this, it claimed that an inconsistency in spelling at the laboratory meant that not all product names stated in the test results accurately matched the names of its products and that it was awaiting further data. The ASA therefore held that this was misleading advertising under rule 3.1 of the CAP Code and the ads must not appear again in their current form.

Similarly Church & Dwight UK Ltd claimed that its toothpaste could produce "3 shades whiter clinically proven" and relied on a study which they had conducted by a leading dental research institute. When the ASA referred the study to an independent expert, it found that it was not "sufficiently robust" and even had a significant proportion of subjects who experienced darker teeth or no change at all. As a result of this the ASA found the claim to be misleading (breaching CAP Code rule 3.1) and incapable of substantiation (breaching CAP Code rule 3.9). As a result the ads cannot appear again in their current form.

Conversely Procter & Gamble were vindicated by the ASA when its ad featuring TV personality, Holly Willoughby, was investigated following claims that P&G had enhanced the whiteness of Miss Willoughby’s teeth in post-production. The ad was investigated for suspected breaches of CAP Code rule 3.1 (misleading), rule 3.9 (substantiation )and rule 3.12 (exaggeration) but was cleared by the ASA when Clearcast confirmed that P&G had not enhanced the film nor whitened Miss Willoughby’s teeth. P&G even produced a letter from Miss Willoughby stating that she had been using the toothpaste for a period prior to filming and had noticed a significant difference. On this basis the ad was cleared of any breach. There are two lessons to learn from these cases: i) always ensure that your advertised claims are backed up with solid independent evidence and ii) yes, Holly Willoughby’s teeth really are that white! 

Online Behavioural Advertising Targeted By The Regulator

The Advertising Standard Authority's remit will shortly cover Online Behavioural Advertising (OBA). The Committee of Advertising Practice (CAP) has extended the CAP Code to cover this increasingly developed form of targeted advertising with a new series of Rules. OBA involves the collaboration of advertising networks and third parties to deliver customised advertising based upon deep analysis of a user’s web browsing activity. From 4 February 2013, the ASA will require advertisers and other ‘third parties’ to provide notice to web users, in or around online display advertisements that OBA is taking place. This notice must then link to a mechanism whereby users can opt out of receiving OBA from that third party. The third parties themselves must provide a notice on their website that they use data for OBA and the understanding is that most third parties will then link to an industry-wide website whereby users can choose the type of third parties which can target them with advertisements. Not only this but third parties will be required to gain explicit consent from users before using forms of OBA and they will be prohibited from targeting children aged 12 and under. CAP’s rules on OBA do not apply to contextual advertising, web analytics, ad reporting or the use of OBA in rich media, in-stream videos online or on mobile devices but once these regulations begin operating, we may see further extension.

CAP and the ASA have stated that they hope to resolve any breaches of the Code quickly between the parties but failing this the ASA will carry out a formal investigation and publish an adjudication where necessary and so again as soon as these regulations begin to be enforced we may have a better idea of their application and consequence in practice. CAP has published a Help Note on this new development, available here.

ASA Bans Naked Farmer Ad, But Not for The Flesh On Display

A TV ad for Richmond ham which features a naked man wearing only a cap and eating a ham sandwich, was banned by the ASA at the end of last month, but not for the reasons you might think. The man sang a song declaring his love for Richmond ham which proclaimed that Richmond ham is "Britain's only ham made with 100% natural ingredients." The ad was cleared for broadcast with an ex-kids restriction, which meant it should not be shown in or around programmes made for children. The advert received 371 complaints, five issues were investigated by the ASA and one was upheld. the ASA investigated whether: (i) the nudity in the ad was offensive; (ii) the ad was inappropriate for broadcast at times when children were likely to be watching; (iii) the claim "Britain's only ham made with 100% natural ingredients" was misleading and could be substantiated; (iv) it was misleading to describe the product as "Britain's only ham...", because the company was Irish and the product was made in Ireland; and (v) the claims "made with 100% natural ingredients" and "as nature intended" were misleading and could be substantiated.

Surprisingly, it was issue number (iv) that turned out to be the reason for the ASA clamping down on Richmond ham. In relation to the nudity, which drew the most public complaints, the ASA stated that it was "not sexual in tone and we concluded that it was unlikely to cause serious or widespread offence". Regarding the claim that the ham was British, the ASA upheld the complaint, stating that the ham was likely to be interpreted by consumers watching the ad as a product of British origin, when this was not the case. Therefore, the claim was held to be misleading and the advert was deemed to breach BCAP Code rule 3.1 (Misleading advertising).

Using Celebrity Endorsements in Social Media: Should you #JustDoIt?

Advertisers are using social media platforms such as Twitter to reach an unprecedented number of people cheaply and instantaneously. With some celebrities enjoying a following of over a million fans, advertisers have found a new way to maximise the traditional celebrity endorsement model and extend the reach and exposure of their promoted goods and services to new levels.

However, this year the ASA has already heard two complaints relating to product endorsement via Twitter. This is clearly going to be a significant issue going forward and it is important for advertisers and their agencies to be aware of the legal and regulatory pitfalls. Check out our new Ad Guide for more information and guidance on using celebrity endorsements in social media.

Is The Beauty Industry Set For A Makeover?

Last year, Rimmel London was criticised for its “1-2-3 Looks Mascara” television and magazine ads when the Advertising Standards Authority deemed in its adjudication that the use of lash inserts on model Georgia Jagger exaggerated the effect achievable from the use of the product alone and the disclaimer “Shot with last inserts” was insufficiently clear in providing information.

In response to similar complaints about use of eyelash inserts, hair extensions and airbrushing in cosmetic advertising the Committee of Advertising Practice and the Broadcast Committee of Advertising Practice have published new guidance designed to educate advertisers in the cosmetics sector and prevent misleading and exaggerated claims about the effect a product is capable of achieving.

The CAP Help Note, "The Use Of Production Techniques in Cosmetics Advertising", draws a distinction between the use of obvious exaggeration that is not likely to be taken literally, the effect actually achievable by the product, and the exaggeration which consumers interpret as begin indicative of a product’s capabilities. Consequently, forthcoming ads for mascara may use eyelash inserts to fill in natural gaps in the lash line but not to create a lengthening or volumising effect beyond what can be achieved by the mascara on natural lashes.

Post-production airbrushing will also be scruintised to avoid misleading consumers on the apparent performance of the product, and advertisers may no longer be able to remove or reduce the appearance of lines and wrinkles, add highlights and shine or remove ‘fly-away’ hair. The Help Note further reiterates the importance of advertisers continuing to document and retain appropriate evidence to demonstrate any research, styling and re-touching, as required under the Codes, and also clarifies that the use of qualifications and disclaimers will not excuse otherwise disallowed activities. Disclaimers and qualifying statements should only be used for adding clarity and must be legible and appropriately placed. This comes at a time when the cosmetic industry is possibly already turning a marketing corner. In the US last month, French cosmetics brand Make Up For Ever launched the world’s first unretouched make-up ad campaign and in the UK both Maybelline’s and Maxfactor’s TV ads have taken a deliberate move towards a more natural setting. As our industry becomes more and more transparent, it remains to be seen whether this new guidance will initiate a decline in highly stylised ad campaigns in favour for the natural look. Please contact a member of the ReACTS team for further information and assistance with your advertising.

Is the ASA Getting in Your Personal Space?

The wait is finally over... Hot on the heels of yesterday's launch of product placement onto UK television, today marks another dawn of a new age in UK advertising. As of today, Tuesday 1st March 2011, the regulatory remit of the ASA is extended to cover online non-paid for space and pages under the control of advertisers. This means that the CAP Code for non-broadcast advertising, which previously only applied, in an online context, to advertising in paid-for space, such as pop-ups and banner ads, will now regulate promotional activities on companies' own websites and on sites such as a brand's official Facebook page, Twitter feed or YouTube channel.

It remains to be seen how the ASA will manage, if at all, to police its new regime, considering the enormity of this task and the limited funding available. But the controversial new sanctions it has the power to impose on infringing advertisers should not be sniffed at.  

Our own Marina Palomba shares her thoughts on this groundbreaking new development in MediaWeek today.

Please see our Ad Guide for further information about how this will affect our industry, or contact a member of the ReACTS team.

Luxury Brand Protection? Stella McCartney v. the Sanitary Towel

 Advertisers have been given the green light to continue to use the name of products they give away as prizes in promotions, without needing the permission of the brand/product owner, following a recent controversial adjudication by the ASA

The ASA disagreed and found in favour of Bodyform in all respects. Clauses 7.1 (Truthfulness),14.7 (Testimonials and Endorsements) and 20.1-20.2 (Denigration) of the CAP Code were considered, but the ASA ruled there had been no breach. It was decided that the adverts were not likely to discredit the underwear brand or company and that "readers would understand…that [Stella McCartney] underwear was a product of value and a desirable prize." The ASA also commented that the CAP Code does not require an advertiser to get permission from a brand before referring to a brand. Is it time this requirement was added? Or should luxury brands be grateful with the free advertising in any context? What’s next? Toilet cleaning products offering luxury branded jewellery as prizes? Could coupling a particular product with a luxury brand in an ad ever be deemed denigratory to the luxury brand? Watch this space! 

Some believe this decision is contrary to the ECJ ruling in Copad SA v Dior (Case C-59/08, 23 April 2009), where a "trademark's prestige" and "the aura of luxury" were found to be "essential" to brand protection. Stella McCartney Limited challenged the adverts for a competition being run by the makers of female sanitary products, Bodyform (SCA Hygiene Products UK). The ads (running in magazines, on packaging and on line) gave the reader the chance to win £100 worth of Stella McCartney underwear. Stella McCartney Ltd argued that the ads were denigratory, misleading by suggesting an endorsement of the product by the underwear brand, took unfair advantage of the brand, and did not make it clear that the brand had no association with Bodyform.

 

 

 

 

Saucy Ice Cream Ads Once Again Frozen by the ASA

In the same week that the Pope visited the UK, the ASA banned an ad it deemed could be offensive to some Roman Catholics.  The ad, for Antonio Federici ice-cream, which ran in Grazia and The Lady magazines  earlier this year, featured an obviously pregnant nun eating Antonio Federici ice-cream alongside the words "Immaculately conceived". The strap line for the campaign was "Ice-cream is our religion". The ASA received ten complaints from readers of the magazines claiming that the ad was offensive to Christians and in particular to Catholics. In its adjudication, the ASA said that the ad breached old CAP Code s.5.1 (Decency), which states that ads "should contain nothing that is likely to cause serious or widespread offence. Particular care should be taken to avoid causing offence on the grounds of race, religion, sex, sexual orientation or disability. Compliance with the Code will be judged on the context, medium, audience, product and prevailing standards of decency".

Thus the ASA concluded that the use of such an image as the pregnant  nun to advertise ice-cream, was likely to cause serious offence to readers, particularly practising Catholics. It did not matter that the ad was only placed in a small number of publications, and only a relatively small number of complaints were received, the ASA ruled that the potential for causing serious offence in breach of the Code was significant and that the ads should not run again in their current form.

In 2009, the ASA banned a similar series of ads from Antonio Federici  which featured a cavorting priest and nun with the lines "Submit to temptation" and "Kiss temptation".  The ice-cream company appears determined to create controversial ads, regardless of the previous adverse ASA decisions, so one wonders what their next campaign will be like. However most advertisers do not revel in the publicity of adverse adjudications and there is a danger for repeat offenders that they will be required to pre-clear all their ads for a prescribed period in the future.

When using any religious references, images or innueundo, it is always wise to seek advice and to tread carefully. An ad need not actually cause serious and widespread offence to be problematic, the potential to do so may suffice for a negative adjudication. The latest adjudication was investigated under the old CAP Code. As of 1 September 2010, the new CAP Code is in force. Please see our Ad Guide for further information about the changes to the regime.

 



 

Regulation Spreads to Advertisements on Corporate Websites and Social Networking Sites

The Advertising Standards Authority, ASA, announced on the 1st September 2010 an extension of its regulatory remit, from March 2011, which will give the Regulator jurisdiction over all marketing communications on the Internet including those on corporate websites and social media networks such as Twitter and Facebook, as well as over advergames and user generated content.

 

This controversial move has been introduced without any public consultation, and includes new serious sanctions for advertisers. Exemptions to the new regulation include "heritage advertising", 'investor relations', and marketing communications promoting "causes and ideas". Nearly all other marketing promotions on-line will need to comply with the CAP Code. Some areas of concern include how the ASA will deal with the fine line between editorial and promotional material; how the extended remit will be adequately funded; how sanctions can be effectively enforced against companies with sites based overseas or indeed against those thousands of smaller on line advertisers who are blissfully unaware and ignorant of the CAP Code and whose advertising can change in seconds in this fast paced media environment.

 

All this comes into effect on the 1st March 2011, which does not give businesses long to review their on line promotions and marketing plans. The changes to the CAP Code ironically comes literally days after printed versions of the revised CAP and BCAP Codes were sent out to purchasers, and only a few months after a public consultation, which excluded these latest provisions.

Some on-line promotions are more risque than in other media. This is justified since much on-line material on corporate websites and social media networks is “pulled” by the consumer and not “pushed”. These new provisions do not indicate how the ASA will adjudicate marketing material that is aimed at adult markets. Pulled materials ought to be treated differently to those that are pushed at consumers such as pop ups and banners. This is a recognised practice in the off-line environment where advertisements in adult magazines are treated differently to those on a poster or press ad. Otherwise there is a serious danger of a dumbing down of creativity and a less enjoyable experience for consumers.

 

Many other problems are yet to be determined. For example can a fast food company produce a children’s advergame and comply with the CAP Code given the social responsibility clauses and the restrictions on food advertising?

 

Many advertisers may be surprised to learn they will pay a levy on sponsored search to fund this new extended remit. Google has provided some initial funding to cover the first year or two of the new system but the 0.1% levy on advertising spend by ASBOF (Advertising Standards Board of Finance) collected by advertising agencies, (albeit that they represent only a fraction of spend in this sector) from their client advertisers, is intended to cover the additional cost of the extended system.

 

The risk to the ASA is that it may be unable to cope with the number of complaints and the funds available may be inadequate in the long term to deal with this vast medium where reputable advertisers will comply, as they largely do already for reputational reasons alone, and where smaller traders and many rogue traders carry on as they do now.

 

For further advice on what this means for your business please see our Ad Guide.

Handbags at Dawn? Misleading Advertisements in the Press

45% of complaints to the ASA, The Advertising Standards Authority, are about misleading claims.  One latest advertiser to fall foul of the rules, is Louis Vuitton. The ASA upheld complaints that two press ads were misleading. One featured a photograph of a woman stitching the handle of a handbag with the words " A needle, linen thread, beeswax and infinite patience protect each overstitch from humidity and the passage of time. One could say that a Louis Vuitton bag is a collection of details. But with so much attention lavished on every one, should we only call them details?"  

Three complainants complained  the ads misleadingly implied that Louis Vuitton products were made by hand when they are not. The ASA upheld the complaints because there was insufficient evidence to substantiate the implied claims that they were.

Louis Vuitton is one of many advertisers who fail to have prepared  the necessary evidence to prove any implied or explicit claims in advertising.  Why does this matter? Because an adverse ASA adjudication that upholds complaints for misleading can be hugely damaging to brand reputation, and often for fairly small infringements of the advertising codes.

The UK's advertising codes for broadcast and non broadcast advertising are unambiguous:

"Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation. Relevant evidence should be sent without delay if requested by the ASA or CAP.  The adequacy of evidence will be judged on whether it supports both the detailed claims and the overall impression created by the marketing communication. " (Clause 3.1 CAP Code)

Often marketers simply get carried away with belief in the brilliance of their products and creatively simplified slogans simply sound better. There is however a genuine risk that exaggerated statements can lead to damaging adverse publicity and with the imminent extension of regulation to promotional messages on the Internet advertisers must think carefully about claims in marketing communications of all types. Other marketers do not take an ASA letter demanding substantiation seriously. This is a mistake as many have discovered. A quiet week in the news means the press will focus on any major brand caught out breaching the Codes. John Reynolds in Campaign, publicises one of many such advertisers in his article about British Gas' efficiency claims. Media Guardian's Mark Sweney will swoop on any important transgressor. Only recently he reported the ASA's decision to ban Eurotunnel email promotion which claimed its service took vehicles to France by train in just 35 minutes and ran "whatever the weather". 

Its not just about brand damage either. Having a press ad or TV commercial banned can mean a massive waste of money. So don't waste a good campaign, an expensive TV commercial or lose pre purchased media space. Know your regulations and have robust evidence to substantiate your claims.